Last Night’s Cafe: Ethics and the Laws of War

When war is unleashed, the philosopher John Locke observed, the combatants find themselves in a situation where no-one is judge or arbitrator, and all that is left is for the warring sides to ‘appeal to heaven’. In other words, the laws and rules that operate with a political community no longer hold, and all that’s left is to hope for divine favour. The just war tradition, however, represents an attempt to lay out moral rules that should govern armed conflict. As such, it represents a philosophical position somewhere between principled pacifism (which claims that war is morally wrong) and realism (which claims that war may be necessary as a means to an end, but that moral rules cannot be applied to it).

In last night’s cafe, Dr Antony Lamb examined the elements of just war theory, and explored some of its shortcomings.

He noted that central to the idea that sometimes war can be morally right are two central distinctions – between right and wrong reasons for engaging in armed conflict between nations or states (jus ad bellum), and between right or wrong ways of conducting wars when they are underway (jus in bello). With respect to the former, some examples of right grounds for fighting include just cause (such as self defence), resorting to violence as last resort, the possession of legitimate authority to declare war. With respect to the latter, the chief principle that should be obeyed is that of non-combatant immunity. No-one not wearing a uniform should be targeted by military forces.

As Antony noted, these and other principles are often transgressed in actual conflict. Bu this does not mean that such principles are not morally compelling. In particular, they can form the basis for judgement and punishment of war crimes after the fact, supporting legal rules and mechanisms that will then serve as a deterrent to war.

But there are perhaps problems in principle with the just war tradition. On the one hand, Antony suggested, just war principles do not in themselves have enough ‘bite’ to be translated into properly binding legal rules. On the other, just war principles seem to miss something about the wrongness of certain actions, and thus need to be based on more fundamental moral principles. While the various UN Conventions relevatn to warfare provide examples of legal rules which have more force, the rule-consequentialist principle that action should always aim at minimising violations of rights offers a possible moral foundation.

At the same time, Antony noted, relying too much on fudnamental arguments may be the wrong way to go. As John Rawls has argued in relation to issues of rights more generally, given the diversity of moral traditions different cultures operate with, reaching agreement on fundamental principles might not work. Mid-level values, on the other hand, which can command assent from a variety of perspectives (such as, for example, the right to self-defence) could provide a better basis.

In discussion, audience members questioned the stability of many of the just war principles. In particular, the possibility of establishing just cause, when the chains of causation and justification that are used to rationalise wars are often very long and highly complex. Power imbalances between state actors provided another reason for scepticism about the meaningfulness of just war principles. Beyond these principles, it is debatable whether concepts like self defence are as clear-cut as they might appear. What, for example, is the ‘self’ being defended? Is it reducible to someone’s physical existence, or does it extend to cover something like ‘way of life’? Who might the legitimate subject of self-defence be? Just war theory seems to presuppose that the legitimate authorities with the right to engage in armed conflict are nation states. But does it also include non-state actors, like minority groups who may be threatened by ethnic cleansing?